Divorce When You Own a Business or Earn Above the Caps

Most divorces in New York are decided by formulas. Child support is a percentage of combined income up to a cap. Maintenance is a formula applied to the payor's income up to a cap. Marital property is divided by the court after weighing sixteen factors. If both spouses are W-2 employees and the marital estate is a house and two retirement accounts, the formulas do most of the work and the lawyers argue about the margins.

That changes when one spouse owns a business, holds a professional license, earns more than the caps, or has assets that were acquired before the marriage or by inheritance. The formulas stop at the cap and the judge has discretion above it. The business has to be valued, and the valuation depends on assumptions that can move the number by hundreds of thousands of dollars. Separate property has to be traced, and if it was mixed with marital money it may be gone. Income has to be established from tax returns that were prepared to minimize taxes, not to show what a business owner actually takes home. Every one of those questions is a place where preparation and financial literacy decide the outcome.

I have a law degree from Albany Law School and an MBA from Cornell's Johnson School, and I have handled more than a thousand matters over eighteen years. The MBA is not decoration. It means I read a balance sheet, a K-1, and a valuation report the way the other side's expert reads them, and I know which assumptions to attack.

What is different about a high-income divorce in New York?

Here are the issues that come up in nearly every case involving a business owner, a physician, an attorney, an executive, or a spouse with significant separate property.

1. Income above the child support cap. As of March 1, 2026, the Child Support Standards Act applies its percentages to combined parental income up to 193,000 dollars. Above that figure, the court decides whether to apply the percentages, apply the statutory factors, or do both, and it must explain its reasons. The Court of Appeals set that rule in Cassano v. Cassano in 1995 and the Second Department, which hears appeals from Suffolk and Nassau, applies it regularly. In 2025, it affirmed a Nassau order applying 25 percent to income well above the cap because the father's income and resources were substantially greater. Whether the court goes above the cap, and how far, is argued case by case, and the argument is won with evidence of the children's actual needs and the parties' actual lifestyle.
2. Income above the maintenance cap. The maintenance guidelines apply to the payor's income up to 241,000 dollars as of March 1, 2026. Above that, the court may award additional maintenance based on the statutory factors, or it may not. The duration schedule is advisory. For a spouse earning 600,000 dollars, the difference between guideline maintenance on 241,000 dollars and a discretionary award on the full income is the largest number in the case.
3. Imputed income. Business owners do not always pay themselves what the business earns. Courts can and do impute income based on earning capacity, past earnings, perquisites paid by the business, and money the business pays for personal expenses. In May 2026, the Second Department affirmed a Suffolk County judgment that imputed income to both spouses, one from past earnings and earning capacity and the other at 35,000 dollars. If your tax return shows one number and your lifestyle shows another, expect the court to look at the lifestyle.
4. The business itself. A business or professional practice started or grown during the marriage is marital property. It will be valued, usually by a neutral or court-appointed expert, and the non-titled spouse will receive a share of that value, typically as a distributive award paid over time rather than as an ownership interest. The share is rarely half. The percentage depends on the non-titled spouse's direct and indirect contributions and on the factors in DRL 236B(5)(d). The valuation page explains how this works in detail.
5. Separate property and commingling. Property you owned before the marriage, inherited, or received as a gift from someone other than your spouse is separate property, but only if you can trace it and only if you kept it separate. The Second Department's November 2025 decision in Wen Wen Sun v. Ti Zhou gave a spouse a 2.1 million dollar credit for traced gifts from her parents before the marital residence was divided. Its May 2026 decision in Borzilleri v. Borzilleri went the other way for a Suffolk County husband whose pre-marital Cutchogue property became marital when it was transferred to a joint trust, and whose pre-marital sale proceeds lost their separate character when they were used to pay a marital mortgage. Same court, six months apart. The difference was the paper trail.
6. Counsel fees. DRL 237 creates a rebuttable presumption that the less monied spouse is awarded counsel fees. In a case with a large income gap, the higher earner should expect to fund a meaningful part of the other side's litigation. In the Borzilleri case, the award was 40,000 dollars, in part because of conduct that prolonged the litigation. In a 2026 Kings County case involving roughly 2.6 million dollars in concealed cryptocurrency, the court awarded 300,000 dollars in additional interim counsel fees and 125,000 dollars in expert fees. Concealment is expensive.
7.  Discretion. The financial disclosure in a divorce is extensive and, in Supreme Court, it is filed. E-filed matrimonial documents are not viewable by the public online, but the file exists. For a physician, a business owner with partners, or anyone with a public profile, how and when disclosure is made, and whether the case is resolved by agreement before a trial creates a public record, is a strategic decision from day one.

What we do in these cases

We start with the documents, not the story. Before the preliminary conference, the court rules require both sides to exchange a sworn statement of net worth, current pay stubs, three years of tax returns with all schedules and K-1s, three years of bank and brokerage statements, and life insurance and deferred compensation statements. We build the financial picture from those documents and from the business records, and we decide early whether a valuation expert, a forensic accountant, or both are needed.

We also decide early how the case should end. Most high-income divorces settle, and they should, because a trial puts the outcome in the hands of a judge with a heavy calendar and creates a public record. But a settlement is only as good as the leverage behind it, and leverage comes from being ready to try the case. We prepare every case as if it will be tried and we negotiate from that position.

Call 516-928-5838 or use the contact form to schedule a free thirty-minute consultation. We work with clients in person in Riverhead and remotely across Suffolk and Nassau County.